State Consumer Disputes Redressal Commission
Tata Motors Ltd vs Shailesh Kumar S/O Khemchand Jain, +1 on 10 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. FA/12/276
(Arisen out
of Order Dated 31/12/2011 in Case No. cc/09/546 of District Forum,
Nagpur.)
Tata Motors Ltd,
Passenger Car Business Unit,
3 rd floor, Narang Tower,
27 Palm Road, Civil Lines, Nagpur,
Tq. & Distt. Nagpur.
...........Appellant(s)
Versus
1. Shailesh Kumar
S/o Khemchand Jain,
R/o. Vivekanand Nagar, Tumsar,
Tq. Tumsar, Distt. Bhandara.
2. M/s. A.K.
Gandhi Cars,
Great Nag Road, Nagpur. ...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.Shaikh PRESIDING MEMBER
HON'ABLE MRS. Jayshree Yengal MEMBER
PRESENT:
Adv. Mr. Sachin Jaiswal
......for the Appellant
Adv. Mr. A.J. Wankhede for the respondent No.1
Adv. Mr. Devras for the respondent No.2
......for the Respondent
ORDER
(Delivered on 10/03/2014) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This appeal is preferred against the order dated 31/12/2011 passed in Consumer Complaint bearing CC No. 546/2009 by the District Consumer Forum, Nagpur by which the complaint has been partly allowed.
2. The case of the complainant as set out in the complaint in brief is that the Opposite Party (for short O.P.) No.2 is the manufacturer of four wheeler and O.P. No.1 is its dealer. The complainant purchased a four wheeler namely Tata Sumo Grand Car for Rs. 6,82,923/- from the O.P. No.1 which is manufactured by the O.P. No.2. He purchased that car on 12/05/2008. The manufacturing defects were noticed in that car, within 15 days of purchasing it. They are described in detail in the complaint. Therefore, complainant took it for first time to O.P. No.1 for repairing on 29/05/2008. The O.P No. 1 tried to remove those effects. However, within one month thereafter again manufacturing defects were noticed in that vehicle, which are also described in the detail in the complaint. Therefore on 26/06/2008 the complainant again took that vehicle to O.P. No.1 for repairing. The complainant informed O.P. No.1 in writing about the said manufacturing defects and asked it either to remove the same or to replace the said car by new car. Again on 19/01/2009 manufacturing defects were noticed in car and hence it was again taken to O.P. No.1 on 20/01/2009 and it was requested to O.P. No. 1 to provide a new car to the complainant. The car was neither repaired satisfactorily nor was new car provided though the complainant took that car repeatedly to O.P. No.1 whenever defects was found in it. Therefore lastly the complainant served legal notice to OPs. and requested them to provided him new car by replacing the defective car. It was not complied with. Therefore, it is prayed by the complainant that direction be given to the O.P. Nos. 1&2 either to replace that car by new car or to refund him its price of Rs. 6,82,923/- with interest at the rate of 24% p.a. from 12/05/2008 till its realization and also to pay him compensation of Rs.50,000/- towards mental harassment and Rs.
10,000/- towards cost of complaint.
3. The O.P. Nos. 1&2 filed written version separately and thereby resisted the complaint. The O.P. No.1/respondent No.2 herein in its written version admitted that the complainant purchased the car mentioned in the complaint from it on 10/05/2008 for the consideration mentioned in the complaint and that thereafter for the first time the complainant brought that vehicle to it on 29/05/2008 for its free servicing and at that time the free servicing was done and the complaints made about the said vehicle by the complainant were duly attended and the requisite work was done. It is submitted that whenever the complainant brought that vehicle to it for repairing, it was repaired from time to time. There is no manufacturing defect in that vehicle. All the defects in that car were removed to the satisfaction of the complainant, from time to time. It (O.P. No.1) also gave reply on 27/04/2009 to the notice of the complainant. The complainant is not entitled to replacement of that car by new one. It is therefore submitted that the complaint may be dismissed.
4. The O.P. No. 2 /appellant herein in its written version also admitted that it is a manufacturer of the car which was purchased by complainant from O.P. No. 1 on 10/05/2008. But it submitted that thereafter for the first time the complainant brought that vehicle to O.P No.1 on 26/06/2008 and not on 29/05/2008 for its repair. It also admitted that the repairs were done by O.P. No.1. It is also admitted that thereafter the vehicle was brought by the O.P. No.1 by complainant on various occasions for repairing as mentioned in detail in the written version and repairs were done on all occasion to the satisfaction of the complainant. . There is no manufacturing defect in that vehicle. The period of warranty of 24 months or 75,000 Km. whichever is earlier if the car is used for personal usage and for 50,000 Km if it is used for commercial application. Therefore, complainant is not a consumer as defined under Section of 2(1)(d) of Consumer Protection Act. The complainant used that car extensively within 18 months for 52,962 Km. The complainant has misused the car by subjecting it to off road application by using it in Coal Mines Area. Therefore the car developed several problems. All minor and running problems which were reported by the complainant under warranty were attainted to by the O.P. No.1. Therefore, the complainant is not entitled to replacement of that car by new one. It is therefore submitted that the complaint may be dismissed.
5. The Forum below after hearing Advocates of both parties and considering evidence brought on record, came to the conclusion that though the vehicle is road worthy, the Commissioner appointed by it found certain minor defects in the body of the vehicle and it was responsibility of the O.P. Nos.1&2 to remove those minor defects but they have not removed the same, though car was taken by complainant to O.P. No.1 from time to time. The Forum below found that as all those defects found by Commissioner appointed by it are still existing in that vehicle, it is necessary to replace the body of that car by new one. Hence, it directed O.P. Nos.1&2 to remove the top portion i.e. the body of the car and to replace it by new body within 2 months and accordingly to provide defects free car to the complainant. It also directed them to provide loaner car for use to the complainant till the whole work of that car is over. It also directed O.P. Nos. 1&2 to pay to the complainant Rs.25,000/- towards physical and mental harassment and Rs. 2,000/- towards cost of the complaint.
6. Feeling aggrieved by that order the original O.P. No.2/Manufacturer has preferred this appeal. We have heard learned Advocates of the appellant/ original O.P.No.2, respondent No.1/original complainant and respondent No.2/original O.P. No.1 and we have also perused the written notes of arguments and other documents filed by them.
7. The learned Advocate of the appellant submitted that the copies of job cards produced on record show that the vehicle was brought to the respondent No.2 herein on the dates 08/07/2008, 23/08/2008, 17/09/2008, 23/09/2008, 04/11/2008, 17/11/2008, 20/01/2009, 04/04/2009, 14/04/2009, 11/05/2009, 09/06/2009, 06/07/2009, and that the defects pointed by the complainant in that vehicle were duly attended to by the O.P. No.1 and all the times necessary job was done to the satisfaction of the complainant. He further submitted that it is not proved that there is inherent manufacturing defect in the body of that vehicle for replacement of the same by new one and that the Commissioner appointed by the Forum below also did not point out any such manufacturing defects in the body of the vehicle. He also argued that otherwise also the report of the Commissioner cannot be relied upon as he is not an expert in the field and the vehicle ought to have been referred to Automobile Research Association of India (for short ARAI), Pune which is the only approved research institution for inspection of automobile and detection of defects if any therein. Thus, according to him when the vehicle was in absolutely road worthy condition and requisite jobs have been carried on the vehicle, it can be said that the said minor and running repairs were required to be carried out due to regular, continuous, extensive and faulty use of the said vehicle. Thus, he submitted that the Forum below has not considered these material aspects of the case and passed erroneous order and hence, it may be set aside and complaint may be dismissed.
8. On the other had the learned Advocate of the respondent No.1/original complainant supported the impugned order and submitted that the vehicle was brought to respondent No.2 for more than 11 times from 29/05/2008 to 20/12/2009 as seen from the job cards, for removing various defects in the vehicle, but the same were not removed and therefore, after service of notice to the appellant and respondent No.2 by complainant/respondent No.1 herein, the complaint was filed before the Forum below. He further submitted that after decision in the complaint on 31/12/2011, the said vehicle was handed over by the respondent No.1 to respondent No.2 on 22/03/2012 for complying with that order and in the month of April-2012 the respondent No.2 provided to the respondent No.1 loaner car as per impugned order for temporary use but the same was also taken back by the respondent No.2 on 21/04/2012 for its servicing and repairing and then it was not returned to the respondent No.1. Thus he submitted that since 22/03/2012 the car of the respondent No.1 is lying with respondent No.2 and during this period the condition of the car has become worst and it is also not returned to respondent No.2 though demanded. He therefore, submitted that now the body of the car which is kept respondent No.2 from 22/03/2012 has become so bad that there is no other way but to replace it by new one. He relied upon observations made in the following cases.
i. Ghilu Ram Vs. Escorts Ltd., IV (2003) CPJ 38 (NC). In that case, the tractor was inoperative for number of years and hence it is held that the complainant is entitled to compensation for trouble undergone.
ii. Mahindra and Mahindra Ltd. Vs. Chandan Mondal and others, 2013 CPJ 486 (NC). In that case the job cards produced were found sufficient to prove that the vehicle did have defects and the complainant was put to hardship on account of the same. It is held that it is futile to go into minute/extreme technicalities to establish whether the said defects are manufacturing or not.
iii. Mahindra and Mahindra Vs. Vasantrao Dagaji Patil and another, III (2002) CPJ 79 (NC). In that case the vehicle was with appellant /manufacturer and its dealer for four months, which deprived the complainant for the use of the vehicle. Therefore compensation was granted to the complainant.
iv. M/s.
Mandovi Motors Pvt. Ltd. Vs. Pravenchandra Shetty and others, 2013(4) CPR 145 (NC). In that case, petitioner had admitted that it replaced parts from time to time. The complainant agitated the matter for last and he still has to get requisite relief. Therefore, compensation of Rs.3,00,000/- was granted to the complainant.
v. Branch Manager, Marikar Motors Vs. Baburaj and others, 2012(1) CPR 382. It is held that full refund of price of vehicle is permissible in case of persistent manufacturing defects.
Relying on these decisions the learned Advocate of the respondent No.1 herein/original complainant submitted that appeal may be dismissed.
9. The learned Advocate of the respondent No.2 submitted that the respondent No.2 is only a dealer of the car and it did the job as mentioned in the job cards produced on record and there is no deficiency in service provided by it to the respondent No.1. He further submitted that if there is any manufacturing defect in the body of the vehicle, only the manufacturer /appellant can be held responsible and that the respondent No.2 can fix new body on the vehicle as per impugned order if it is provided by the appellant to it. He further submitted that the vehicle after decision of the complaint was brought to the respondent No.2 by the respondent No.1 for compliance of the impugned order and respondent No.2 had also provided loaner car to the complainant to the respondent No.1 but after the stay was granted in this appeal, the said loaner car was retained by the respondent No.2. He thus submitted that appeal may be dismissed as against the respondent No.2.
10. Thus, it is not disputed that the car was brought to the respondent No.2 for 11 times from 29/05/2008 to 20/12/2009 for repairing as on those occasion several defects were noticed in that car. All those defects are noted in the job cards produced on record.
All those details of defects and repairing are given by the learned Advocate of the appellant in his written notes of argument also. They give clear inference that there are manufacturing defects in the body of the car i.e. the top of the car and that those were not satisfactorily removed from time to time. The Commissioner appointed by the Forum below also inspected the car and found following defects:-
"There was lateral movement of rear leaf spring and therefore addition fitment of strap was noticed and for avoiding door noise, additional screw was found on the door trim. Dash board was found loose. Entry of dirt and dust was found on back side floor, which might be entering from tail gate beading. The door beading was found damaged and pressed."
11. The said Commissioner recommended that the time bound sorting of issues of the vehicle be done by dealership and that if any repair is beyond capacity of the dealership, it may be attended by the company using appropriate means.
12. There is no evidence to show that all those defects are occurred due to regular, continuous, extensive or faulty use of that car. Admitted warranty period of 24 months of that car was not ever when those defects was found from time to time.
13. It is also not disputed that the vehicle was taken to the respondent No.2 herein by the respondent No.2 after decision of the complaint, on 22/03/2012 and at that time the respondent No.2 provided loaner car to the respondent No.1 but subsequently the said loaner car was taken back by the respondent No.2 and it also did not return the car of the respondent No.2 to him. It can be said that right from the date 22/03/2012 the car is in the custody of respondent No.2. Hence, since last two years the car is kept idle with the respondent No.2. Its condition must have been again deteriorated during the said period of two years as it is kept unused. It is also not case of the respondent No.2 that it is able to remove all the defects which are noted by the Commissioner in tht car which are still existing in it.
14. Considering all these facts and circumstances we find the evidence brought on record is sufficient to hold that the respondent No.2 is unable to remove aforesaid defects in the body /upper portion of the car and hence it is required to be replaced by new one by the appellant. Hence, we are of the view that it is the appellant/ manufacture only which is liable to replace the body of the car by new and it is the responsibility of the respondent No.2 to fix the new body of the car by removing old body. Thus, the Forum below has rightly given direction to the appellant to replace the old body of the car by new one. The respondent No.2 however cannot be held responsible to provide the new body since it is a dealer only.
15. Moreover, we find that the compensation of Rs.25000/- granted to the respondent No.1 herein is excessive. We find that the said compensation be reduced to Rs.5,000/-. Thus, appeal deserves to be partly allowed.
ORDER
1. The appeal is partly allowed.
2. The impugned order dated 31/12/2011 is modified to the following effect.
i.
The appellant/ original O.P. No.2 shall provide new body /upper portion of the car of the original complainant /respondent No.1 herein within two months from today to the respondent No.2 herein /original O.P. No.1 and that the respondent No.2 herein /original O.P. No.1 shall replace the old body of that car by the said new one within one month of receiving the new body from the appellant/original O.P. No.2.
ii.
The appellant/ original O.P. No.2 and the respondent No.2 herein /original O.P. No.1 jointly and severally shall pay to the respondent No.1 herein Rs.5,000/- towards mental harassment.
iii.
The rest of the impugned order as regard payment of cost of Rs.2,000 by the appellant/ original O.P. No.2 and the respondent No.2 herein /original O.P. No.1 to the original complainant /respondent No.1 herein is maintained.
iv. No order as to cost in appeal.
Dated:- 10/03/2014.
[HON'ABLE MR.
B.A.Shaikh] PRESIDING MEMBER [HON'ABLE MRS.
Jayshree Yengal] MEMBER ay